PEOPLE v. GABOR

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PEOPLE v. GABOR

September 17, 1999

No. 214235

LC No. 97-009955 FH

Livingston Circuit

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v.

PETRU GABOR,

Defendant-Appellee.

Before: Gribbs, P.J., and Kelly and Hood, JJ.

GRIBBS, P.J.

This is a prosecutors appeal. We reverse.

Defendant was tried before a jury on two counts
of fourth-degree criminal sexual conduct, MCL 750.520(e); MSA
28.788(5). At the close of the three-day trial, the jury was
instructed on fourth-degree criminal sexual conduct. After the
jury completed its deliberations, the foreperson stated on the
record the jurys verdict of "guilty for the act of
criminal sexual conduct in the first degree for the first offense
and guilty for the act of criminal sexual conduct in the second
degree second offense." The jurors were polled, each juror
affirming that this was his or her verdict and that the verdict
was unanimous. The trial judge then asked counsel whether there
was "any legal reason why the jury should not be dismissed
at this time?" Both counsel indicated that there was no
reason not to dismiss the jury. The trial judge dismissed the
jurors with his thanks and told them, "If youll wait
back in the jury room, Ill be back to see you in just a
minute." The jury was excused at 4:04 p.m.

Immediately after the jury was excused, defense
counsel moved to set aside the verdicts because the jury
improperly found defendant guilty of first- and second-degree
CSC, rather than the charged offenses of fourth-degree criminal
sexual conduct. At 4:12 p.m. the trial court called the jurors
back and asked the foreperson to read the verdict again. Reading
the verdict a second time, the foreperson stated that the jury
found defendant "guilty first offense criminal sexual
conduct in the fourth degree, guilty of the second offense
criminal sexual conduct in the fourth degree."

The other jurors all agreed with the verdict as
restated, and the trial court initially treated the second
statement as a correction of the previously misstated verdict.
Defendant moved to set aside the verdict and, after conducting a
hearing on the issue, the trial court dismissed both counts
against defendant.

As the trial court correctly recognized, the
jurys function ceased after it had been discharged. People
v Rushin, 37 Mich App 391, 398-399; 194 NW2d 718 (1971). The
trial court wrongly concluded, however, that dismissal of the
charges against defendant was required in this case. On the whole
record, in keeping with "a rule of reasonableness"[1] in construing the jury verdict, we can easily deduce
that the jury intended to convict defendant of both counts of the
charged offense. The two counts of fourth-degree CSC were the
only charges defendant was tried on and the only counts the jury
was instructed on. There were no lesser offense instructions. The
written verdict form clearly and unambiguously reflects the
jurys verdict of guilty on both counts of fourth-degree
criminal sexual conduct.

Under the circumstances before us, it is
apparent from the record that, despite the forepersons
misstatement, the jury found defendant guilty as charged of two
counts of fourth-degree criminal sexual conduct. The trial court
erred in dismissing the charges against defendant. The
jurys verdict of guilty on both counts is reinstated and
this matter is remanded for sentencing.

Reversed. We do not retain jurisdiction.

/s/ Roman S. Gribbs
/s/ Harold Hood

KELLY, J. (dissenting).

I respectfully dissent.

I agree with the trial court that it had no
choice but to dismiss the charges against defendant because to do
otherwise would violate the principles of double jeopardy. I findPeople v Rushin, 37 Mich App 391; 194 NW2d 718 (1971)
controlling and disagree with the majoritys conclusion that
a "rule of reasonableness" can be used to infer the
intent of the jury.

The trial court stated in reaching its
conclusion that dismissal was required:

It is controlling law. First of all, I
am satisfied that my attempt to correct the verdict was
without legal basis. Because Im satisfied that once
the jury was discharged in this Courtroom and left the
Courtroom they became 12 unsworn members of the community
rather than a jury. They were no longer a jury.

This Court in Rushin stated the
following:

Once the jury has been officially
discharged and left the courtroom, we hold that it is
error to recall it in order to alter, amend or impeach a
verdict in a criminal case. As soon as it departs the
courtroom, the jurys legal duties cease to exist;
it no longer functions as a unit charged to perform a
solemn task but rather as 12 unsworn members of the
community; its relationship to the case has terminated.
The Court cannot ascertain the influence to which the
jury has been subjected after it has left the courtroom,
be it for two minutes or two days. Thus, the jurors are
proscribed from deliberating further in the case.

To rule that a jury could be recalled
after being discharged and leaving the courtroom would
not only offend the policies underlying the double
jeopardy clause, but would also serve as an invitation to
tamper with the jury after it had completed its
deliberations. Thus, the Melton rule does not
confer benefits solely on defendants. Rather, it also
acts to preserve the integrity of a guilty verdict. [Id.
at 398-399.]

The facts of this case are clear: 1) after the
jury concluded its deliberation it returned to open court to read
the verdict; 2) the foreman indicated that defendant was guilty
of one count of CSC-I and one count of CSC-II; 3) the jurors were
individually polled indicating that this was their decision; 4)
after the jury was discharged the court was made aware of the
verdicts error; and 5) the jury was called back into the
courtroom and indicated that it intended to convict defendant on
two counts of CSC-IV.

I find this case to fall under the umbrella of Rushin
in that once the jury is discharged it may not be called back
into court to alter, amend or impeach its verdict.[2]Id. at 398. Further, I do
not find this Courts decision in Hoffman v Monroe Public
Schools, 96 Mich App 256; 292 NW2d 542 (1980) controlling in
the present case. The Hoffman court concluded:

[I]n all cases, whether civil or
criminal, once the jury has been polled and discharged,
its members may not challenge mistakes or misconduct
inherent in the verdict. After that point, oral testimony
or affidavits by the jurors may only be received on
extraneous or outside errors (such as undue influence by
outside parties), or to correct clerical errors or
matters of form. [Id. at 261.]

Because the trial court determined the oral
reading of the verdict to be the verdict of record, I cannot
construe a later correction of that verdict as a mere correction
of a clerical error on the written verdict form. Indeed, the
verdict form does not need clarification or correction since it
indicates a verdict of guilty on both CSC-IV counts. To correct
the oral verdict that the trial court deemed as the verdict of
record would result in an amendment or alteration of the original
verdict. After the discharge of the jury, such action is in
violation of the principles of double jeopardy and this
Courts decision in Rushin. Therefore, I would find
the trial court did not err in dismissing the charges against
defendant.

[2] The lower court record contains the verdict form that
the jury completed before announcing its verdict in open court.
The written form indicates that the jury convicted defendant on
two counts of CSC-IV. However, the trial court noted that it was
the foremans presentation of the oral verdict that
constituted the verdict of record. The jurors were polled on the
oral verdict and not the written verdict.